Jury trials are slow, expensive and don't necessarily produce the 'right' verdict -- so why do we still use them?

Our legal system – note I do not call it our justice system – deserves to come in for criticism. Not everything is bad, but there are elements that need to be reformed.

Basic things don’t look right to me – for starters, it costs way too much and is way too slow. But there is more.

One rule is that juries cannot be told of previous convictions. This negates the history. The idea of being tried before twelve good and true of ones peers began its development way back in Anglo-Saxon times. There was little point in rules restricting jury knowledge of the accused past as the members of the jury came from the community itself and would have known the accused’s background anyway. They would be far more likely to know whether this was completely out of character or just the sort of thing that this accused person would do.

One can’t help but feel that in the modern world with classical theatrical performances by thespian defence attorneys and juries that have no native idea of the character they are judging, juries are just too easy to manipulate.

The Scott Guy case is another one of those cases that had a verdict that looked correct legally but just does not seem to be “right” if true justice is our guiding light. Everyone but no-one that I have spoken to tells me that they are convinced enough that the case was not proven ‘beyond reasonable doubt’ but also that the charged accused certainly did not look or feel ‘not guilty’ to them. Learning of Ewen Macdonald’s nasty murky past after the event just confirmed earlier suspicions.

The case that really took the cake was the O J Simpson trial in America. Subsequently in a civil trial he lost, but it was too late. He had got off not guilty – I really wonder how many people believe that.

I don’t think the jury system serves us well anymore.

We had the potential for another high drama show trial with Oscar Pistorius, but fortunately South Africa abolished trial-by-jury in 1969, over concerns black people would never get a fair trial. They are not the only ones who use the inquisitorial judge-only trial system. Most of continental Europe, Africa, South America and Asia, use that system in preference to juries. Good on them.

Comments (8)

Well if your standard for who should be convicted is 'those that feel guilty to us' rather than 'proven beyond reasonable doubt' then sure. Revealing previous convictions will help us know whether a particular person feels guilty or not.

But it will also make it more likely that whoever is deciding on their guilt (be it a jury or a judge) will decide based on whether they're a nice person or not, rather than whether the evidence suggests they actually committed this crime.

'Beyond reasonable doubt' is the standard we've used because (so far) we have said we'd rather a guilty person walked free than an innocent person went to prison. The cost of that balancing act is occaionally a guilty person will walk free. Swing away rom that and most all of the guilty ones will get put away. But are you comfortable with more innocent people getting put away too?

Are you really saying that our legal system should be based on whether people you know think the person 'looks' or 'feels' guilty? Do you seriously think that because one case in a different country reached a decision that most people think is wrong (including those who are actually have detailed knowledge of the case) we should completely abandon the system of jury trials? For what, so we can introduce a system where people look at people here about their background and decide if they're a good bloke who wouldn't do this type of thing or someone who would? That would certainly reduce the costs of the trial process, although not so much as the tried and true method of dunking people in a river.

The [NZ Law] Commission is also considering the roles of judges and jurors in deciding a verdict in criminal cases.

"Research shows that juries may approach a criminal case with an array of myths and prejudices that impact on their assessment of the evidence and decision making. Juries also do not have to give reasons for their verdicts so their decision-making lacks transparency. ''

The Commission propose[s] that facts in trial, including the verdict, could be determined by a judge sitting alone or a two "semi professional'' jurors who were trained in criminal procedure.

The possibility of creating a specialist sexual violence court for cases where the offender pleads guilty or providing an alternative process outside the criminal justice system to resolve some sex offence cases was also raised.

There's also this longer NZ Herald article looking at both sides of the argument.

I rather like the jury system - and it is one way of improving on the perenially non-performing parliament. If we had less MPs we could replace their representative function on individual issues with randomly selected members of the public. This would on the whole raise the quality and intelligence of NZ political decision making.

As for the justice system, the problem is not so much the juries as a greater abundance and professionalism of lawyers. If we set a cap on legal fees, so that impecunious legal professionals were obliged to spend most of their time selling timeshare, blacking boots, or pursuing the elusive social media dollar, they would have less time for returning burglars to their friends and relations, and natural justice could once again prevail.

You do raise an interesting point with regards to the theatre of the defence.

A Science has developed around the presentation of those being presented before the court. No facial hair, a fresh and tidy haircut and of course the complimentary suit and tie have seen even the most ardent criminal take on the appearance of a family man. And don't get me started on how many of these people have "Found God".

I am however rather uncomfortable with your suggestion of bringing previous history to the jurors. I believe people should be convicted on fact in relation to the charges brought, not because they used to be a bad person. I also believe such a measure could make some people guilty before being proved innocent.

There are strong arguments for the abolishion of jurors. This is not one of those arguments.

I'm not sure that is correct. If the prior convictions of an accused pertain to the charges they're facing, my understanding is that the convictions can be disclosed. I think the term is "similar fact evidence". I recall in the case of Clint Rickards et al, the accused rapists' convictions could not be disclosed because to do so may have prejudiced Rickards' chances of a fair trial. Rickards had no such convictions.

Juries are not perfect, but neither are judges. The research I've seen is that there is a close correlation between the verdicts in trials by juries and judge-alone trials. In other words, the verdicts are likely to be similar whatever system we have.

I also believe such a measure could make some people guilty before being proved innocent.

One problem might be that police could focus on any suspect with a prior record, in the hope that any jury would convict the accused on the basis of that record. In other words, police might be tempted to take short cuts. We've seen less-than-impressive police investigations in some high profile cases. Admitting an accused's prior record could lead to more of these cases.

One can’t help but feel that in the modern world with classical theatrical performances by thespianpoliticians and the voters have no native idea of the character they are judging,[and]are just too easy to manipulate.

An excellent argument for dispensing with voters altogether, as has already been done with ECan.